Explanation to the tribunal over alleged criticism

On 23 February 2014, the International Crimes Tribunal 2 issued an order seeking an 'explanation' about criticism of the tribunal contained in three posts in these blogs. The particular blog posts are as follows: Sayedee Indictment - 1971 deaths (published on 11 November 2011), Azad judgement analysis 1: in absentia trials and defence inadequacy (published on 26 January 2013) and Azad judgement analysis 2: Tribunal assumptions (published on 26 January 2013).

This notice was issued following an application made by a lawyer seeking punishment for contempt, and closure of the blog.

On 18 March 2013, an explanation was filed, and the court then set 27 March (today) as a date for a hearing on the explanation to take place. This has now been adjourned until 31 March (Monday)

Below is text of the explanation which was filed with the court one week ago, and about which there will be an oral hearing today. The full document can be downloaded from here

To read section explaining article on 1971 deaths (para 11)
To read section explaining first article on Azad judgement (para 12)
To read section explaining section article on Azad judgement (para 13)
To read concluding section (para 14)

BEFORE THE INTERNATIONAL CRIMES TRIBUNAL NO. 2, DHAKA
ICT-BD MISC. CASE NO. 01 OF 2014
IN THE MATTER OF:
Abul Kalam Azad … APPLICANT
-V E R S U S-
David Bergman … OPPOSITE PARTY

THE OPPOSITE PARTY’S EXPLANATION AS REQUIRED BY THE HON’BLE TRIBUNAL’S ORDER DATED 20.02.2014

I, David Bergman, son of Alan Bergman and Viorica Bergman, of 1, Elvaston Mews, London SW1 5HY, United Kingdom, currently residing at 7/C New Bailey Road, Dhaka-1000, by profession: journalist, by nationality: British, aged about 49, state as follows:

1. That I am the opposite party in the above Miscellaneous Case and therefore, being conversant with the facts and circumstances of the case, I am competent to make this statement.

2. That I have received a copy of order No. 2 dated 20.02.2014 passed by the Hon’ble Tribunal on 23.02.2014 together with a copy of the Application and annexures thereto (collectively ‘the Application’) filedby the Applicant in the above case. I have gone through the contents of the said order and understand that it directs me, the opposite party, to “explain the criticism allegedly .. made in [my] blog on 11.11.2011 and 28.01.2013”.

3. That the opposite party is hereby submitting this explanation in compliance with the said order dated 23.02.2014 in order to explain the alleged criticism of the Hon’ble Tribunal contained in three posts/articles published by the opposite party in his blog titled “Bangladesh War Crimes”, one on 11.11.2011 and two on 28.01.2013.

4. That the opposite party, by way of this affidavit, is setting out this explanation under reference as directed by the Hon’ble Tribunal. This explanation is not intended to be, and it is respectfully submitted that it may not be construed either, as a statement controverting the application filed by the Applicant or as a reply purporting to show cause as to why contempt proceedings should not be drawn against the opposite party, as the Hon’ble Tribunal has not required any such statement or reply but has simply directed that an explanation be made.

5. That at the outset, the opposite party would like to assert clearly that he is deeply and fully conscious of the widespread nature of the international crimes and atrocities committed by the Pakistan military and their collaborators during the 1971 war of liberation, and the terrible grief and suffering faced by the families of those who died, and that he is on the record throughout the last twenty years as having fully supported the process of seeking legal accountability for these crimes through a trial process.

6. That the opposite party reaffirms that any comments or criticisms he has made about the on-going trial process in his articles and blogs have been made bona fide and in good faith, and are directed at seeking improvements in the trial process, understanding that if the process was not above reproach, and did not meet the standards which the Government of Bangladesh and the Hon’ble Tribunal have themselves asserted and sought for the process, they would be vulnerable to attack by those who deny and obstruct the process of accountability, and that it would not be healthy for a living breathing criminal justice system seeking popular support and legitimacy to be put beyond any comment.

7. That the opposite party earnestly and respectfully prays that, bearing in mind the allowances of fair criticism permitted by the law, the Hon’ble Tribunal will view the blogs in the above context and will also appreciate that permitting third party applicants with no interest or involvement in the trial process to seek orders to stifle legitimate and fair comment made in good faith about the Hon’bleTribunal’s proceedings and with no intention of disrespecting the Hon’ble Tribunals, will be detrimental to the trial process.

8. That on the basis of reported judgments of the Hon’ble Appellate Division of the Supreme Court it is submitted that it is relevant to consider the background of any person who makes comment on judicial proceedings in order to assess the fairness of such comment and hence the opposite party states as follows:

9.  (a) The opposite party obtained an LL.B degree in Law and Politics in 1986 from Birmingham University, and an LL.M. Degree with Merit in 1990 from the London School of Economics in the United Kingdom where he took course in amongst other, International Human Rights Law, and Law and Society in South Asia..

(b) The opposite party was professionally engaged in journalism and writing and published occasional articles on legal issues focusing on workers’ rights in the British press including the reputed daily newspapers,The Guardian and The Independent, as well as The New Statesman, New Law Journal and Legal Action.

(c) The opposite party also worked as a researcher, and then producer, at Twenty Twenty Television, a production company producing documentaries for British Television including ITV and Channel Four. During this period he undertook research investigation for a documentary “The War Crimes File”, broadcast on Channel Four in May, 1995. The documentary investigated three British-Bangladeshis, who were erstwhile members of the Jamaat-E-Islami and/or its student wing, against whom there were allegations of committing war crimes during the 1971 War of Independence. The documentary won a Royal Television Society Award (‘Special Commendation’) in 1996 in the Current Affairs Documentary category. Evidence and testimony obtained in the film was later used as evidence by the prosecution in its case before the Hon’ble International Crimes Tribunal No. 1 against Chowdhury Mueen Uddin, with interviews in the film mentioned a number of times in the Hon’ble Tribunal’s judgment.

(d) From 1999 till 2009, the opposite party served as the Executive Director of the Centre for Corporate Accountability in UK, promoting workplace safety issues, during which time he wrote numerous official reports, including for the International Labour Organisation (ILO) on Bangladesh’s Compliance with the Labour Inspection Convention.

(e) Since moving with his family to Bangladesh in 2004, he worked with a number of leading Bangladeshi media, including as Head of the Investigations Unit of the Daily Star; an Editor at bdnews24.com, and is currently Editor, Special Reports at The New Age and also makes freelance contributions to various international news media.

(f) For the past 18 years, the opposite party has had a continuing interest in issues involving the 1971 War of Liberation, beginning with his involvement in the making of “The War Crimes File” in 1995. The research by the opposite party for the documentary represented one of the first examples in Bangladesh of a detailed and objective scrutiny of specific instances of alleged culpability of particular individuals with war crimes during the 1971 War of Liberation. Dr. Meghna Guhathakurta, the daughter of Professor Jyotirmoy Guhathakurta killed on the night of the 25th of March, 1971, traveled to London specifically for the launch of the film. The film revived international attention and interest for the prosecution of individuals against whom there were allegations of perpetrating atrocities during the 1971 War of Independence, which were almost forgotten internationally at that time. The film was then launched in Dhaka by Projonmo Ekattor, the organisation of the children of those killed in 1971, at an event attended by a wide cross section ofindividuals, including writers, lawyers, journalists and human rights activists. The opposite party later returned to Bangladesh to produce a Bengali version of the documentary with the assistance of Mr. M. Hamid, later the Director General of Bangladesh Television. The documentary was shown on Bangladesh Television and VCDs/DVDs of it were widely distributed in Bangladesh. A range of organisations, including the Ekattorer Ghatok Dalal Nirmul Committee, used the film as part of their campaign to seek the establishment of a Tribunal for the trial of those accused of war crimes in 1971, and formally recognized the contribution of the opposite party in this regard through an award issued to him.

(g) While in Bangladesh subsequent to the launch of the film, the opposite party assisted Projonmo Ekattor in the collection of affidavit evidence from key witnesses to alleged war crimes, which were then sent to Scotland Yard for possible prosecution of the persons who were the subject matter of the film. Scotland Yard passed these affidavits on to the Government of Bangladesh through the Bangladesh High Commission in the late 1990s. During this period, the opposite party on a number of occasions met with the present Head of the Investigation Agency of the Hon’ble Tribunal, who at the time was senior official of the CID of the Bangladesh Police, to assist him in his inquiries.

(h) It is respectfully submitted that the above shows that the opposite party has continuously supported endeavours to ensure justice for victims of war crimes perpetrated in 1971. After the December 2008 elections, when the Government first considered steps to establish the Hon’ble Tribunal, the Bangladesh Law Commission carried out a consultation on proposed amendments to the International Crimes (Tribunal) Act, 1973. Given his interest in the issue, the opposite party was amongst only four individuals who responded to the request of the Commission in making suggestions for amendments. Following considerable comparative research, the opposite party made a submission to the Law Commission, which expressly acknowledged this in its final report.

(i) After the establishment of the Hon’ble International Crimes Tribunal (‘the ICT’), the opposite party had personally attended proceedings of the ICT on a regular basis and also wrote a blog on the internet, containing neutral summaries of the day-to-day proceedings. Following the beginning of the actual trial of Delwar Hossain Sayedee he hired researchers to provide notes on the proceedings which were posted on his blog. In the absence of publicly available transcripts of the proceedings, his blog, along with notes taken for another organization, the War Crimes Study Centre at the University of California in Berkley, in the United States of America, are as far as the opposite party is aware, the only publicly available accurate and detailed summary of the proceedings in a number of the cases, setting outthe arguments of parties, and enabling all interested members of the public who are unable to attend the proceedings to follow developments in detail. As well as the neutral daily summaries the blog also contains commentary on the process, the blog contains a total of 840 articles/post relating to the proceedings at the Hon’ble Tribunal.

10. That the application refers to the following articles/posts published by the opposite party in his blog:

(a) The article/post entitled “Sayedee indictment-1971 deaths”, published in the said blog on 11.11.2011 a copy of which has been annexed as Annexure-“A” (pages 46 to 52) to the application.

(b) The article/post entitled “Azad judgment analysis 1; ‘in-absentia’ trials and defense inadequacy”, which was published in the said blog on 26.01.2013 a copy of which has been annexed as part of Annexure-“A-1”(pages 58 to 63) of the application.

(c) The article/post entitled “Azad judgment analysis 2; Tribunal assumptions”, which was published in the said blog on 26.01.2013 a copy of which has been annexed as part of Annexure-“A-1”( pages 58 to 63) of the application.

11. That in explanation of the criticism of the article/post entitled “Sayedee indictment-1971 deaths”, which was published in the blog of the opposite party on 11.11.2011, the opposite party states as follows:

(a) The article looks at, among others, the available evidence about how many people were killed by the Pakistan Army and its collaborating forces during the Liberation War of Bangladesh in 1971.

(b) The article begins by referring to the order of indictment dated 03.10.2011 passed by the Hon’ble International Crimes Tribunal No. 1 regarding Delwar Hossain Sayedee, wherein it is stated that as a result of the actions of the Pakistan military and its collaborators, thirty lacs of people were killed, two lacs of women were raped and about one crore women, men and children had to take refuge in India whileten lacs of people were internally displaced.

(c) The article clearly acknowledges that raising any questions about the figure of thirty lacs of people killed in the War could provoke strong emotions.

(d) The article states that the Hon’ble Tribunal did not refer to any evidence or material to support the thirty lac figure, treating it as a historical fact.

(e) The article then states that though the thirty lac figure was treated as an “official” government figure, there was little evidence to support this, and reviews in significant detail some available information and material including interviews of well known writers/researchers who have been campaigning for war crimes trials, as well as other academics in the field of health, and demography.

(f) First, the article states that the figure became “official” after Bangabandhu Sheikh Mujibur Rahman, first President of Bangladesh, had announced it in a number of interviews soon after his release from Pakistan. It then refers to number of explanations given by others about how Bangabandhu came to mention this particular figure, including the view that he meant to say three lacs but mistakenly said three million (that is thirty lacs). In this regard, the opposite party referred to a letter published on 24.05.2011 in the British daily newspaper The Guardian by Mr Serajur Rahman, the retired Deputy Head of the Bengali Service of the British Broadcasting Corporation, a true copy of which as downloaded from the internet is annexed hereto and marked Annexure-“1”.

(g) In this regard, it maybe noted that Mr.Serajur Rahman, who apparently differs with the Hon’ble Tribunal No. 1 regarding the figure of those killed in the 1971 War, is a recipient of the Ekushey Padak, the second highest National Award given by the Government of Bangladesh.

(h) The article also quotes from a biography of Bangabandhu, ‘Sheikh Mujib: Triumph and Tragedy’ published in 2005 by UPL written by the first Foreign Secretary of Bangladesh, Mr Sayyid A. Karim. At page 297, he writes that “Mujib claimed shortly after becoming head of government that as many as three million Bengalis had been killed by Pakistani occupying forces during the liberation was. This was no doubt a gross exaggeration; the correct figure is likely to be around a million”. In a footnote at page 302, he writes “Curious as to how the figure of three million dead had been arrived at, I asked someone in the Prime Minister’s office about this. I was told that this figure was taken from Pravda, the organ of the Communist Party of the Soviet Union.” A true copy of the relevant pages of the book by Mr Sayyid Karim, is annexed hereto and marked as Annexure-“2”.

(i) In this regard, it appears that Mr Karim may have been referring to news agency articles quoting the Pravda report which were re-published in a number of newspapers in Bangladesh including The Bangladesh Observer which on 5 January 1972, under a headline titled ‘Pak Army killed over 30 lakh people’, referred to the Pravda report, which was quoted on para 82 of the judgment in the Golam Azam case. It should be noted that the Pravda article does not provide any basis for its estimate of 30 lacs and that it also stated that the Pakistani military forces ‘immediately before their surrender to Mukti Bahinis and the Allied forces had killed about 8oo intellectuals in the capital city of Bangladesh alone’ although the judgment of the Hon’ble Tribunal in the Chowdhury Mueen Uddin and Ashrafuzzaman case suggests that around 18 intellectuals were killed in Dhaka at that time.

(j) The article then mentions that Bangabandhu subsequently ordered an inquiry to get further information on the matter of the numbers of people killed in 1971, but nothing was published in this regard.

(k) The article also noted varying estimates about the numbers of persons killed in 1971. Referring to research by the Peace Research Institute of Norway published in 2002 which estimated the figure at 58,000, the blog noted that it has proven difficult to clarify the methodology for this research and it was unclear whether this low figure of 58,000 had any more basis in truth than the high figure of 3 million.

(l) The opposite party then referred to research by the Institute for Health Metrics and Evaluation at the University of Washington in Seattle and the Harvard Medical School (published in an article in the renowned British Medical Journal in 2008, titled, ‘50 years of violent war death from Vietnam to Bosnia: analysis of data from the World Health Survey Programme’ which estimated that the number of dead in 1971 in Bangladesh was closer to 269,000, with figures ranging from 125,000 to 505,000, citing an analysis of World Health Organisation population surveys, and looking at sibling deaths. True copies of the relevant pages of the British Medical Journal report are annexed hereto and marked as Annexure-“3”.

(m) The opposite party then referred to research by the Cholera Hospital (now ICDDRB) undertaken by George T Curlin, the noted public heath academic Lincoln C. Chenand Sayed Babur Hussain which was published in another renowned international journal “Population Studies” in March 1976 titled “Demographic Crisis: The Impact of the Bangladesh Civil War (1971) on Births and Deaths in a Rural Area in Bangladesh”. The research involved determining the number of people who died in one area, namely Matlab, Comilla, in 1971 by comparing detailed survey data on this population taken by the Cholera Hospital in the years before the war as well as the year after. This research found that in Matlab, with a population of around 120,000 people, there were 868 “excess” deaths in 1971, with many resulting from war-related malnutrition and disease, rather than from killing. Extrapolating this data to the whole country, the research estimated that there would have been about 500,000 war-related deaths throughout the country. The article states that, “(t)he conflict undoubtedly had different impacts on different geographical areas within Bangladesh. Indigenous food production and the distribution of imported foods varied between one locality and another. Moreover, those areas containing large numbers of Hindus, the religious minority, or those in which fighting actually took place were more severely affected. Matlab Bazar thana was not at the extreme on any of these factors. However, it is unique in that the population was served by a diarrhoea treatment unit; this unit provided care to about 2,500 in-patients a year. The base crude death rate in Matlab Bazar of 15.3 per 1,000 is thus probably lower than in the nation as a whole, commonly estimated at 17.0. Withdrawal of diarrhoea treatment during the conflict could have led to a further increase in the death rate. Thus, the impact of the war in Matlab Bazar, while not representative of the nation as a whole, illustrates and reflects in a qualitative sense the consequences of the civil war. Accepting these limitations, it appears useful to estimate the probable overall demographic impact of the war on Bangladesh. Assuming a national population of 70 million in 1971-72 and the Matlab Bazar base vital rates, there would have been about 3.20 million births and 1.07 million deaths in 1971-72 in the absence of the war. The decline in the crude birth rate by eight per cent in 1972-73 suggested that there were approximately 260,000 births either averted or postponed by the conflict. With increases in the death rate in 1971-72 and 1972-73, of 40 and six per cent respectively, this implies an overall excess number of deaths of nearly 500,000. By any standard this was a major disaster."

(n) The research/article noted that such a generalisation had limitations, and that 500,000 could not in any way be said to be an exact figure. The opposite party referred to this caveat, but also pointed out that the research constituted a detailed neutral objective analysis of one particular rural population using data collected systematically before, during and after the war. A true copy of the article published in Population Studies in 1976 is annexed hereto and marked Annexure-“4”.

(o) One of the authors of the said article, Dr Lincoln C. Chen, has recently in December 2012 been awarded the title of ‘Foreign Friend of Bangladesh’ by the Government of Bangladesh for his contribution to the birth of the nation..

(p) The said article also referred to an interview with Mr Mofidul Huq, the eminent writer and publisher, and Trustee of the Muktijuddho Jadughor, described in the blog as a “respected war crimes activist”, who pointed out by reference to census data of 1969 and 1974 and an estimated growth rate of 2.8%,that the population of Bangladesh was supposed to be 8.01 croresin 1974 but was found to be only 7.64 crores, suggesting that the estimate of 30 lacs deaths in the Bangladesh genocide was not an exaggeration. With reference to this, and a similar analysis which was also referred to, the article set out demographers’ concerns about the reliability of the 1974 census and pointed out that the gap in the figures could be explained by migration to India and a depressed fertility rate. The opposite party concludes that using estimates of population and poor census data (unlike the detailed house to house surveys undertaken by the Cholera Hospital) are not a good basis for making an assessment of the numbers of 1971 war deaths.

(q) The article then refers to the views of Dr. M.A. Hasan, the Convenor of the War Crimes Facts Finding Committee, who had stated in an interview that he considered that the real figure was closer to 12 lakhs but could be as high as 18 lakhs on the basis of average number of bodies recovered from identified mass graves and his extrapolations based on such numbers.

(r) Thus, the blog was based on objective materials, including interviews and comments of persons who are highly respected for their professionalism and dedication, and who considered the figure of 30 lacs to be accurate, as well as other researchers who suggested much lower figures. The blog then noted and totally discounted the estimates cited in both Sharmila Bose’s book Dead Reckoning (referring to the numbers of persons killed as being no more than 50,000 to one lakh) mentioning that the particular research undertaken by Bose in her book did not allow her to make any conclusions about the numbers who died. The blog also referred to and dismissed the report of the Hamoodur Rehman Commission set up by the Pakistan Government under Zulfikar Ali Bhutto (referring to only 26,000 killed ‘in action’ by the Pakistan Army in 1971).

(s) Again, it may be noted that had the opposite party had any oblique motive in authoring his blog other than to make an objective and dispassionate analysis of the subject, he would not have so obviously disapproved of the Sharmila Bose estimate or the Hamoodur Rehman finding.

(t) The blog also discussed the figure of two lacs regarding the number of women raped in 1971, as stated by the Hon’ble Tribunal in its charge framing order. The blog stated that this appears to have been based on an estimate by an Australian doctor, Dr. Geoffrey Davis, who worked in Bangladesh from March 1972 for about six months. The blog then referred to an interview with the Bangladeshi/Australian academic, Dr Bina D. Costa, where she had questioned this number as being likely to be too “high” and had referred to the figure of 25,000 forced pregnancies to be correct and supported by the documents of the International Committee of the Red Cross which noted that at least 25,000 cases of pregnancy occurred from abduction, rape and force marriages during the [1971 Liberation] war.

(u) The concluding part of the blog headed “Do numbers matter?” unequivocally and clearly noted that the actual number of deaths in 1971 was not relevant to whether a particular accused before the Hon’ble Tribunal had committed the offences of genocide or crimes against humanity; and that whether 3 million, 300,000 or indeed even 30,000 were killed, the number of deaths in 1971 was very very large, which cannot be denied, and that there was enough substantiated evidence to suggest that whatever the exact number of deaths, a very large number of civilians were killed; but that it was also important for the sake of historical accuracy that one should not claim that a particular number of people died - whether it is too high or too low - which has no basis in evidence.

(v) In light of this explanation it is submitted that the alleged “criticism” of the Hon’ble Tribunal extended only to raising a question regarding whether the Hon’ble Tribunal’s reference to 30 lacs deaths in 1971 was appropriate without reference to any supporting material particularly given the nature of available evidence and divergent views held by credible sources on the subject.

(w) It is submitted that these alleged ‘criticisms’ are no more than an academic analysis expressed in restrained and sober language and based on review of research studies and articles, and not expressed in sensationalist terms, and may therefore be considered by the Hon’ble Court to fall within the limits of fair comment on a judgment.

(x) It is further respectfully submitted that the subject matter of the blog article was in no way related to any substantive issue pending before the Hon’ble Tribunal, having been made even before any trial had commenced, and so was not in relation to any sub judice matter nor could it remotely or at all interfere with the administration of justice inasmuch as the figure of those killed in the War in 1971 was not a fact in issue in the trial.

(y) It is humbly submitted that though the application does state that the post/article contains ‘wrong information and wrong analysis of facts’, it does not state what information or analysis written in the article is in fact wrong. ‘ In this regard, the opposite party respectfully submits that the language used by the applicant to describe this blog post is misleading and false, in that there is nothing contained there which ‘indiscriminately maligned the dignity and honour of the Tribunal by way of making derogatory comments’, undermined ‘the dignity of the members of the Tribunal and the people at large’. ‘tends to bring the Tribunal or its members into hatred or contempt’, or ‘maligns the tribunal in the eye of right thinking people.’ It is also submitted that it is false for the applicant to have suggested that the opposite party‘recklessly and severely criticized the order,’ in this article.

12.That in relation to the blog article entitled “Azad judgment analysis 1; ‘in-absentia’ trials and defense inadequacy”, which was published in the blog of the opposite party on 26.01.2013, the opposite party states as follows:

(a) By way of setting a context, the blog begins with a reference to the reaction of Bangladesh’s political establishment and civil society to the Abul Kalam Azad trial and judgment. The opposite party acknowledges in the article that the atrocities of 1971 have caused deep and searing suffering and that there is an obvious need for accountability. However, the opposite party also expressed his concern that individuals and organisations within the country who have always spoken out on rights issues and on injustices and in support of fair trial and due process, have not observed or commented on the proceedings before the Hon’ble International Crimes Tribunal, particularly in view of the controversy associated with the “Skype” issue as well as certain aspects of the trial of Delwar Hossain Sayedee, which are both matters of factual record. It should be noted that in setting out this context, and referring to the Skype issue (which was less than two months old at the time of writing) and the Sayedee trial, the blog provides seven ‘hyperlinks’ (i.e links which allow the reader of the blog to click on a sentence that goes to a new page on the internet ) to seven separate articles which set out the factual foundation for the views set out in the introductory context.

(b) The introductory part of the blog article expresses a need for being objective in any analysis of the proceedings before the Hon’ble Tribunal, particularly in view of the revelations associated with the “Skype” issue, which is a matter of public record.

(c) The blog then turns to analyse certain aspects of the Abul Kalam Azad judgment.

(d) First, under the heading “In absentia trials”, the blog mentions that with reference to the Tribunal appointed defense lawyer’s argument that such an in absentia trial was not valid, the Hon’ble Tribunal in its judgment rebutted such argument by pointing out that such trials are allowed by the United Nations supported Special Trial for Lebanon as well as endorsed by the European Court of Human Rights and the Human Rights Committee (the last in relation to communications under the International Convention on Civil and Political Rights). The opposite party commented that the statements in the judgment of the Hon’ble Tribunal were “misleading” because among others, they had not mentioned that Article 22(3) of the Special Tribunal for Lebanon statute specifically provides that in case of any conviction in absentia, if the accused did not have a designated defense counsel of his choice, he shall have the right to a retrial in his presence unless he accepted the judgment. The opposite party further pointed out that similarly, in the 2001 case of Krombac v France, the European Court of Human Rights had held that in absentia trials shall not be incompatible with the Convention as long as the accused has the right to subsequently seek a fresh determination of the merits of the charge from the trial court in his presence (set out in para 85 of the judgment) A true copy of the judgment is annexed hereto and marked Annexure- 5

(e) It is respectfully submitted that the blog post may be considered to be fair comment inasmuch as it is expressed in sober and restrained language and is factually based and that the courts/systems to which the Hon’ble Tribunal referred to above in justifying proceedings in absentia do in fact allow for retrial/redetermination in the presence of the accused convicted in absentia should the accused so seek, which the International Crimes (Tribunal) Act, 1973 does not. The opposite party used the word “misleading” in the ordinary sense of the word as found in the Oxford Dictionary of English (Indian Edition) (2nd Edition) where it is defined as “giving the wrong idea or impression” when used as an adjective. A true copy of the relevant page is annexed hereto and marked Annexure_6. In this regard, it may be noted that such adjective was used to describe the analysis contained in the Hon’ble Tribunal’s judgment, and not to describe the Hon’ble Tribunal itself. It is also respectfully submitted that in relation to the trial of Chowdhury Mueen Uddin and Ashrafuzzaman Khan, the judgment of the Hon’ble Tribunal does not seek to justify this trials in absentia with reference to any international court or standard.

(f) The opposite party does, however, acknowledge, on the basis of legal advice received since receiving the notice of the above Miscellaneous Case, that the words “misleading” may have a different, more pejorative connotation in legal parlance in Bangladesh, which was far from what the opposite party intended when he used the words. Hence, the opposite party has edited the blog article to replace the words “very misleading” and “misleading” with the word “incorrect” and regrets and humbly begs to be excused for this expression.

(g) Regarding parts of the blog article, headed “Time to prepare” and “The lawyer’s preparation”, the opposite party stated in his blogpost that the comments here discusses the lawyer appointed by the Hon’ble Tribunal to represent Abul Kalam Azad in absentia and aspects of how he conducted the defence, including not seeking an adjournment beyond the three weeks initially allowed by the Hon’ble Tribunal as the minimum permitted by law in order to prepare for the case, and in terms of him not undertaking defense investigations, visiting the crime scenes and bringing defense witnesses. It is respectfully submitted that these comments do not reflect any criticism of the Hon’ble Tribunal itself.

(h) With regard to the fourth portion of the blogpost headed “Adequacy of the legal representation”, the opposite party states that the legal representation of Abul Kalam Azad, while adequate in terms of the general practice of lawyers in Bangladesh, may not be considered adequate by international standards. It is submitted that such a comment, which has been expressed in sober and restrained language, and upon a reference to international treaties to which Bangladesh is a signatory, including the International Covenant on Civil and Political Rights, and observations on the matter by the UN Human Rights Committee, is within the limits of permissible criticism.

(i) In the concluding portion of the blog entitled “The appropriateness of the defense counsel”, the opposite party commented that it may well have been inappropriate for the defence counsel, in this particular case, to have represented the accused due to his admitted political background. Again, it is respectfully submitted that these comments are directed at the defence counsel for his failure to disclose his political background before the Hon’ble Tribunal, and not at the Hon’ble Tribunal itself and to the extent that there is a criticism about the Hon’ble Tribunal appointing such a person, it is submitted that such criticism is fair in as much that the issue may well have had a bearing on the matter.

(j) It may be mentioned that the blog article has been published after the delivery of the judgment and not in relation to any sub judice matter.

(k) It is again humbly submitted that the application does not state what aspect of the blogpost was false or mistaken or where it referred inaccurately to sources or reflected any bias against the Hon’ble Tribunal. In this regard, the opposite party again respectfully submits that the language used by the applicant to describe this blog is wholly misleading and false

13.That regarding the blog article entitled “Azad judgment analysis 2; Tribunal assumptions”, published on 26.01.2013, the opposite party states as follows:

(a) The article comments upon certain aspects of the introductory parts of the Hon’ble Tribunal’s judgment inthe Abul Kalam Azad case.

(b) The first part headed “Making factual judgment without evidence” begins by quoting three portions of the introductory part of the judgment – two in a section called ‘historical introduction’ and another in a section ‘Backdrop and Context’, which contained certain factual statements/findings to the following effect:

(i) Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS)] committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh.
(ii) The purpose of Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, was essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh.
(iii) Jamat E Islami (JEI), as an organization, substantially contributed in creating these para-military forces (auxiliary forces) for combating unarmed Bangalee civilians.
(iv) Parallel forces e.g Razaker Bahini, Al-Shams, Al-Badar Bahini, Peace Committee were formed as auxiliary forces

(c) With respect to the above, the essence of the opposite party’s comments is that while there may be sufficient evidence for substantiating such conclusions in the Abul Kalam Azad case in particular, no evidence in this regard was heard by the Hon’ble Tribunal as manifest from a reading of the judgment and the discussion of evidence contained therein which was set out in sections subsequent to those in which these statements of fact are made.. The opposite party also mentions that the Hon’ble Tribunal may have taken judicial notice of such facts, pursuant to Section 19(3) of the International Crimes (Tribunal) Act, 1973, but did not so state prior to stating these facts in the introductory portion, nor (as far as he is aware, and it is not noted in the judgment) give any notice of any such intention that would allow the parties to respond, and that in any case these issues were contentious issues which were the subject matter of adjudication in other cases and which ought not simply to be deemed as “facts of common knowledge”.

With regard to the above, the opposite party first regrets and has since corrected the blog which initially contained an inadvertent and bona fide error inasmuch that it incorrectly stated that there was no allegation that Abul Kalam Azad was a member of Al-Badr. It is acknowledged that there was in fact such an allegation in the charge against Abul Kalam Azad.

(d) Secondly, it is submitted that the above falls well within the ambit of permissible fair comment, expressed in sober and restrained language, and which is based upon a cogent and reasoned analysis of facts. While one may dispute and take exception to the correctness of such analysis, it is respectfully submitted that such analysis cannot, by any stretch of the imagination, be considered as being contemptuous.

(e) In the second portion of the blog article headed “Pre-determining Azad’s guilt?”, the opposite party comments on the positioning of two paragraphs in the judgment, which, without any preface to the effect that this was the charge against the accused, states, seemingly as a matter of fact, that the accused “actively aided the Pakistani army as an armed member of volunteer Razakar Force formed in Faridpur in committing criminal acts alleged. He, during the war of liberation in 1971, assisted the Pakistani occupation force initiallyin the capacity of ‘Razaker’ and subsequently as chief of Al Badar bahini of Faridpur” and that “he was a close associate of Pakistani army and actively and substantially assisted them as a potential member of Razakar (Volunteer) force in committing atrocities targeting the civilians and Hindu community and pro-liberation Bangalee people. In Faridpur, he was in charge of Razakar bahini which was equipped with rifles.”

(f) Here, the thrust of the opposite party’s comments are directed at the positioning of these two paragraphs in the judgment, which occurs before any discussion or adjudication of the evidence adduced, which may unfortunately give an appearance that the accused has been pre-judged. The opposite party does not say that the Hon’ble Tribunal pre-judged the case, but only that the positioning of these two paragraphs may give such an appearance. It is again respectfully submitted that this represents a fair comment expressed in sober and restrained language and is based upon a rational and cogent analysis of the facts and a proper reading of the judgment.

(g) The final portion of the blog headed “Numbers of dead” addresses the issue of the number of those killed in 1971. The opposite party stated in his blogpost that this issue was not relevant to the judgment itself. Referring to the statements of the Hon’ble Tribunal as to he number of those killed in the 1971 war, the opposite party notes that the Hon’ble Tribunal did not hear any evidence supporting this number, and also gives a link to the first blog under reference in the instant proceedings. In conclusion, the opposite party states clearly that it is not his intention or desire to undermine or minimize the nature or number of atrocities committed during the 1971 War.

(h) It is submitted that, the above represents fair criticism based on a rational and reasoned discussion and reference to available information and research on the matter. The thrust of the comments by the opposite party here, and indeed in general, is that factual conclusions may be avoided if not supported by evidence adduced during the trial when the Hon’ble Tribunal is not otherwise stating that it is taking judicial notice of such fact having given an opportunity to parties to comment on the matter. It is submitted that such criticism is not only fair and therefore permissible, but also constructive, inasmuch that it facilitates the Hon’ble Tribunal (assuming that it takes notice of such criticism) to look inwards with a view to improving and developing its jurisprudence. Indeed, subsequent judgments delivered by both the Hon’ble Tribunals suggest continuing development in the evolving jurisprudence of the Hon’ble Tribunal with regard to many of the aspects discussed above. The opposite party acknowledges that the last portion of the blog, being, “rather than repeating a mantra that has little or no factual basis”, may appear pejorative which is regretted and unintended, and accordingly, the opposite party, pursuant to common practice, has edited the blog article to delete that phrase.

14.That it is submitted that the comments regarding the Hon’ble Tribunal and aspects of the proceedings before it have been made in sober and moderate language and are objectively based. The Hon’ble Appellate Division clearly provides that “fair criticism” is permitted, which by the very definition of the word, is “an expression of disapproval of someone or something based on perceived faults or mistakes”. The issue, therefore, is whether the criticism was fair. It is respectfully submitted that the criticism of the opposite party as contained in the three articles constitutes legally permissible fair criticism of judicial proceedings expressed in strictly rational and sober language, and made from the highest of motives, without being coloured by any partisan spirit or tactics, so as to enable a judicial authority to look inward into the correctness of the proceedings and providing the possibility of developing its continually evolving jurisprudence.

15. That the opposite party humbly prays that upon a consideration of the above facts, circumstances and submissions, the Hon’ble Tribunal may be pleased to dispose of this matter upon an acceptance of the explanation respectfully provided hereby by the opposite party.

16.That the statements of fact made hereinabove are true and correct and the rest are submissions before this Hon’ble Tribunal.



Prepared in my office
Deponent
Mustafizur Rahman Khan
Advocate